55 Kan. 367 | Kan. | 1895
The opinion of the court was delivered by
This is an original proceeding in quo warranto to determine who of two contending persons is entitled to the office of warden of the state penitentiary. No controversy exists as to the facts upon which the title to the office depends, and, to facilitate the trial and secure an early decision, the facts have been embodied in the pleadings of the parties upon which the case has been submitted. J. B. Lynch, who brings the action, concedes that Seth W. Chase, the defendant, was duly appointed to the office for a term of four years, which began on the 1st day of May, 1893, and ends on the 1st day of May, 1897 ; but he claims that Chase has been legally removed from the office, and that he, Lynch, has been duly appointed in his stead.
It appears that on March 9, 1895, written charges were presented to Gov. E: N. Morrill, calling in ques
The decision of the controversydepends upon whether the proceedings for the removal of Chase were legal and effective. It must be considered that an arbitrary removal from the office at the will or pleasure of the governor is not permissible. The tenure of the office is fixed by law at four years, and there is no statutory provision which can be construed as an authority to-remove at pleasure. The statute providing for the appointment of a warden, and fixing the tenure of the office, also provides that the governor may remove him from office for cause. (Laws of 1891, ch. 152, § 3.) Where there is no term or tenure fixed by the constitution or the statute, or where the office is to be held during the pleasure of the appointing power, the power of removal is discretionary and without control; but it is well settled that where an officer is chosen for a definite term, and provision is made for his removal for cause, the causes for removal must be alleged, the party notified, and a hearing
The allegation that the testimony was insufficient to sustain the findings is without force. The evidence was heard and considered by a tribunal created for that purpose, and the duty of determining its sufficiency belongs to that tribunal, and not to the court. Testimony was offered to sustain and refute the charges, and the weight and sufficiency of that testimony, as well as the fact of whether cause was shown, were concluded by the determination of the committee and the action of the governor.
Judgment will be awarded in favor of the plaintiff, in accordance with the prayer of his petition.